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In public Wi-Fi case, European Court of Justice takes significant step forward for the information society

Brussels - 16.03.2016: Today the European Court of Justice took a significant step forward in strengthening the legislative infrastructure that underpins the European information society.

In a preliminary Opinion on the “McFadden case”, the Court’s Advocate General (AG) has found that operators of free public Wi-Fi cannot be held liable for copyright infringements committed on their networks.

This assessment represents a crucial interpretation of the EU E-Commerce Directive, the legal basis that the European legislator has rightly identified as being key to the development of Internet technologies in Europe.

If confirmed, this ruling would provide the legal certainty necessary for a dramatic expansion of public Wi-Fi access points, potentially to the point that free Wi-Fi could become commonly available across European commercial/retail environments.

As per enforcement of copyrights, the AG Opinion’s rightly considers copyright as just one of the many fundamental rights of EU citizens, one that can only be enforced as part of a balanced approach that reflects the importance of competing rights. In particular, the Opinion strongly vindicates the right to privacy of communications, by precluding the providers of Internet services from undertaking general surveillance of user activities on their network in search of copyright-infringing content.

In that context, EuroISPA hopes the Court of Justice of the EU will adjudicate positively with respect to the Advocate-General’s Opinion in McFadden. Strong protections against misplaced liability burdens are a crucial element in efforts to widen and deepen the information society in Europe.

EuroISPA Intermediary Liability committee chair Malcolm Hutty said: "Today’s AG Opinion further strengthens the consensus that copyright enforcement measures must be balanced with fundamental rights. It says that restricting the availability of Wi-Fi access would be a disadvantage for society as whole, that cannot be justified by benefits to copyright holders. I agree: the economic future of Europe depends on the widespread availability of Internet access, wherever you go, whenever you need it."